Terms and Conditions of Use

PART 1: INTERPRETATION AND DEFINITIONS

1. Unless inconsistent with or otherwise indicated by the context:

(a) Clause headings in this agreement are for convenience only and shall be ignored in its interpretation.

(b) An expression which denotes a natural person shall include a juristic person and vice versa and the singular shall include the plural and vice versa.

1. Where used in this agreement the following expressions shall bear the meanings assigned to them hereunder.

“Agreement” means these terms and conditions

“Buyer” an active, registered user or a “Guest User” of the AYA Service who locates and purchases Product via the AYA Service;

“Buyer payment options” the payment options AYA makes available to a buyer now or in the future to pay for purchases on the site.

“Checkout process” shall mean:

(a) a user clicking on add to cart button after browsing site

(b) A User being redirected to cart page.

(c) Each seller is listed a specific cart for each store

(d) user will click on checkout button and proceed with required fields on page

(e) once payment is completed User will be directed to Thank You page and checkout process will be complete.

“Dashboard” shall mean the feature of the AYA Service through which You manage Your Content and Account

“Exempt product” all products sold through the AYA store

“Fees” means any charges which AYA charge in terms of the AYA Fee Policy;

“Fee Policy” means the policy

“Guest user” means a user who uses the site without registering an account

“AYA Vendor Marketing Materials” means any images, links, documents or other marketing materials pre-approved and provided by AYA to You via the marketing materials area in the Dashboard that you are authorised to use

“AYA Store” means the store created to sell exempt products, and shall be treated as any other seller created store.

“AYA Rating system” a service that may or may not be running at present, that allows for users to rate sellers

“Indemnified Party” means AYA, its officers, employees, contractors, consultants and agents from time to time, and any related entities, associates or affiliates of AYA, and each of their respective officers, employees, contractors, consultants and agents from time to time;

“Intellectual Property Rights” means industrial and intellectual property whether protected by common law or under statute including (without limitation) copyright and neighbouring rights, all rights in relation to inventions (including registered patents and the benefit of any applications for a patent), plant varieties, plant breeders, registered and unregistered trademarks, registered and unregistered designs including drawings, circuit layouts and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world;

“Privacy Policy” means the policy available here – AYA privacy policy.

“Product” shall mean and include, but not be limited to: fashion, apparel, accessories, film, photography, video, vouchers, music, prints, paintings, sculptures, digital media, design and consulting services.

“Prohibited Products” shall mean products you may not offer for sale, or sell. This includes product you are prohibited from advertising or selling by any applicable local, provincial, national, or international law, including regulations having the force of law, or advertise, offer for sale, or sell any of the following Products:

(a) firearms, explosives, or weapons;

(b) food that is not packaged or does not comply with all laws governing the sale of food to consumers by commercial merchants;

(c) any Products that are hateful or racially, sexually, ethnically or otherwise objectionable, that contain child pornography, that are otherwise pornographic in nature, or are harmful to minors;

(d) any controlled substances;

(e) any Products that are counterfeit or stolen;

(f) any dangerous Products;

(g) any goods or services that do not, in fact, exist;

(h) any registered or unregistered securities;

(i) any Products that violate or infringe the rights of other parties;

(j) any Products that you do not have the legal right to sell; or

(k) any Products where advertising, offering for sale or selling through AYA Africa or the Service would cause AYA Africa to violate any law.

“Registration Data” means the information about users as requested by various AYA registration forms

“Seller” an active, authorized registered user of AYA who has created a store on the AYA Service in order to list, promote, market and sell Product;

“Services” AYA shall provide You with the “AYA Service” or the “Service” which is a proprietary Internet-based Software as a Service (“SAAS”) system that facilitates the trade between sellers and buyers of product

“Site” or “Website” means the Internet website by which AYA offers the Services from time to time, currently www.aya.africa

“Third-Party payment provider” means AYA’s chosen third party that processes payments on behalf of users, namely Peach Payments.

“Transaction” is created when a Buyer completes AYA’s checkout process;

“user” or “users” means any Buyer(s) or Seller(s), or someone who is otherwise using the Site;

User Account The registering of user information through the AYA Service, in order to either create a store and sell product through AYA or in order to purchase product through AYA;

“VAT” means any value added tax, or other consumption tax;

“we”, “us”, “our”, “ourselves” and “AYA” are used interchangeably in this Agreement and all mean aya.africa;

“you” or “your” means you, whether as a Buyer and/or you as a Seller, as the case requires, or otherwise, and your successors and permitted assigns; and

“your information” includes all information you provide to us in using this Site, including, without limitation, as applicable:

(a) your registration details, including name and address details;

(b) your credit card details;

(c) the information about any goods and services that you post on this Site;

(d) the information that we learn about you as a result of your use of this Site, including without limitation, through the goods and services you post on this Site if you are a Seller, and the goods and services you purchase if you are a Buyer.

PART 2:

1. Trading on this Site

1.1 In order to create a store and sell product through the AYA Service you will have to create and register a user account and in order to purchase product through the AYA Service you may have to create and register a user account (the “Account”). At all times You represent and warrant that:

1.1.1. your Registration Data is true, accurate, current, and complete (apart from optional items); and

1.1.2. You will maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If AYA suspects that your Registration Data is untrue, inaccurate, not current or incomplete, AYA has the right to suspend or terminate Your Account and refuse any and all current or future use of the Website or Service.

1.1.3. You may never use another’s Account without permission.

1.1.4. You are solely responsible for the activity that occurs on Your Account, and

1.1.5. You must keep Your Account password secure.

1.1.5.1. You must notify AYA immediately of any breach of security or unauthorized use of Your Account.

1.1.5.2. You will be liable for any use made of Your Account or password and the losses of AYA or others due to such unauthorized use.

1.1.5.3. AYA will not be liable for Your losses caused by any unauthorized use of Your Account.

1.1.6. All Registration Data becomes the exclusive property of AYA, its affiliates, successors in interest, and subsidiaries.

1.1.6.1. AYA reserves the right to use and reuse all Registration Data subject to the AYA Privacy Policy. 

1.1.7. AYA shall have the right to rely, without further inquiry, on provision of the user identification(s) and password(s) as sufficient to authenticate use of the AYA Service.

1.2. Apart from any exempt products, AYA is not involved in any sale and purchase of any goods and services on this Site, save for providing a venue for the sale of products and services, excluding prohibited products, and as such you hereby

1.2.1. are not, nor do we represent or hold ourselves out as the manufacturer or agent of any such manufacturer or sales representative of any such manufacturer, of any goods offered for sale and/or sold on this Site;

1.2.2. have absolutely no control over, nor do we represent or hold out that we have any control over any one or more of the circumstances described in Clause 4.5

1.2.3. have absolutely no control over whether, nor do we represent or hold out that, the goods and services offered for sale on this Site are legally able to be sold.

1.2.4. cannot guarantee, nor do we represent or hold out that the descriptions of any goods and services on this Site will be accurate;

1.2.5 have absolutely no control over, nor do we represent or hold out that a Seller or Buyer will perform their respective sale and purchase obligations of goods or services on this Site;

1.2.6. cannot and do not control, nor do we represent or hold out that a Buyer will pay for the goods and services that he/she has ordered on this Site;

1.2.7. cannot and do not control, nor do we represent or hold out that any goods and services will be delivered to a respective Buyer by the respective Seller

1.2.8. cannot and do not represent nor hold out that we can confirm that each Buyer and Seller is who they claim to be;

1.2.9. cannot and do not, nor do we represent or hold out that we can or could, despite any credit checks we may have undertaken, confirm any matters relating to any credit card details supplied to us by a Buyer or Seller (as the case may be) under this Agreement, including without limitation, that the:

1.2.9.1. credit card details of any Buyer or Seller (as the case may be) are correct;

1.2.9.2 credit limit has not been exceeded;

1.2.9.3 credit card has not been reported stolen;

1.2.9.4 Buyer or Seller is entitled to authorised use of the credit card; or

1.2.9.5 credit card is otherwise being lawfully used; and

1.3. AYA will not become involved in any dispute between any Buyer and Seller arising out of, or in connection with, the completion of any sale and purchase of any goods or services on this Site, or with this Agreement, subject to provisions of clause 16.4

1.4. We do not act as agent for either the Seller or the Buyer in either the making of the offer, by the placement of the goods on the site for sale, or the acceptance of such offer.

2. The AYA Service

2.1. The AYA Service allows an active, authorized registered user of AYA to create a store on the AYA Service in order to list, promote, market and sell Product (the “Seller”).

2.1.1. The AYA Service enables You the Seller to:

(a) upload Content;

(b) add, edit and manage Content; and

(c) add advertising creative and other marketing messages in Your efforts to sell Your Product.

 

2.1.2. The AYA Service allows an active, registered user or a “Guest User” of the AYA Service to locate and purchase Product via the AYA Service (the “Buyer”).

2.2. We will provide you with the AYA Service.

2.2.1. We will provide you with a username and password in order to login as required.

2.2.2. We reserve the right to alter or vary your preferred username and password at any time and will notify you of any such alteration (by email where possible).

2.3. You agree to provide all necessary equipment, network connections and software to access this Site.

2.4 You agree that AYA may restrict and/or terminate its services to you at any point in time if AYA, in its sole and absolute discretion, elects to do so and without having to furnish any reasons for doing so.

2.5. AYA facilitates the communication between Users on the AYA Service. We accept no responsibility or liability for the content of User to User communications on the Service.

2.6. The AYA Service is “as is” and no refunds will be provided for fees.

2.7. Right to Use the AYA Service.

2.7.1. Subject to the terms and conditions of this Agreement, and limited solely to the extent necessary to use the AYA Service,

2.7.2. AYA hereby grants You a limited, revocable, non-exclusive, non- transferable, worldwide right to use the AYA Service solely for the purposes described in this Agreement.

2.7.3. All rights not expressly granted to You are reserved by AYA. Except as expressly permitted by AYA, and You shall not:

2.7.3.1. license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the AYA Service in any way;

2.7.3.2. modify or make derivative works based on the AYA Service;

2.7.3.3. reverse engineer, decompile, modify, translate, disassemble or create derivative works based on the AYA Service;

2.7.3.4. rent, lease or otherwise transfer rights to any aspect of the AYA Service; or

2.7.3.5. take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of the AYA Service. You further agree that upon termination or expiration of this right, You shall no longer have the right to use the AYA Service.

3. AYA Fees

3.1. You are responsible for all transaction fees and other fees (the “Fees”) you have agreed to via the AYA Service.

3.2. AYA charges You a percentage of the sale price when Your Product sells. When you list a Product for Sale, You have an opportunity to review and accept the Fees You will be charged.

3.3. AYA’s Fee Policy is subject to change and can be found at (insert link).

3.4. As stated fully in our Fee Policy, upon a seller making a sale, commissions and bank fees shall automatically be deducted and payments to seller will then be effected on a weekly basis by AYA.

3.4.1. A statement will be made available to you on your Dashboard

3.5. Changes to the Fees are effective at the time You accept the Fees or after AYA provides You with at least fourteen (14) days notice by posting the changes on the Website. Notwithstanding the foregoing, AYA may choose to temporarily change the Fees for AYA’s services for promotional events. Such changes are effective when AYA posts the temporary promotional event on the Website

3.6. AYA may, at AYA’s sole discretion, change some or all of AYA’s services and Fees at any time. In the event AYA introduces a new service, the Fees for that service are effective at the launch of the service.

3.7. You are responsible for paying all Fees and applicable taxes associated with using the AYA Service.

3.8. AYA’s obligations hereunder are conditioned upon Your fulfilment of all payment obligations to AYA. If you fail to meet your obligations then AYA shall have the right to suspend delivery of the AYA Service to You, in whole or in part.

3.8.1. Any dispute or claim concerning calculation of Fees charged must be brought to the attention of AYA by e-mail to hello@aya.africa within forty-five (45) days following the statement date, accompanied by the details forming the basis for such dispute or claim. Failure to follow the procedure set forth in the preceding sentence shall serve as sufficient reason for AYA to reject such claim without further liability.

3.9. You may close Your Account by notifying AYA via the AYA Service.

3.10. We may choose in our sole discretion to change our fee structure, billing and credit rules from time to time and such changes shall be effective forthwith.

3.11. We may choose in our sole discretion to change our fee structure, billing and credit rules from time to time, for promotional events and such changes are effective for the dates specified when we post such a promotion on this Site.

3.12 We reserve the right in our sole discretion to alter or remove any Services or withdraw any Services offered. In the event that we introduce a new Service, any fees for that Service will take effect from the launch of that Service, unless otherwise stated.

3.13. Unless otherwise stated, all fees are quoted in South African Rands and are inclusive of VAT. In some instances, VAT is expressed as a separate line item, for the benefit of the customer.

3.14. Users are given the right to sell items on this Site by paying the relevant fees. This does not involve purchasing the rights to the actual web pages, which remain the property of AYA; we further reserve the right in our sole discretion to place third party advertisements on the pages without your consent or payment to you.

4. Seller

4.1. Subject to this Clause 4 and Clause 3, you may post the goods and services that you wish to offer for sale on the Site.

4.2. You agree and warrant to the Buyer of those goods and services and separately to us that:

4.2.1. your information:

4.2.1.1. is accurate and not false, misleading, deceptive or fraudulent;

4.2.1.2. does not breach any Intellectual Property Rights of a third party;

4.2.1.3. is made in compliance with all applicable laws, government regulations or guidelines;

4.2.1.4. is not forged, threatening or offensive or otherwise constitutes harassment;

4.2.1.5. does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;

4.2.1.6. does not contain any viruses, worms, Trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;

4.2.1.7. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature; and

4.2.1.8. does not contain child pornography, bestiality or any other obscene or offensive material;

4.2.1.9. you are the legal owner of the goods and services you are offering for sale on this Site and you have the legal capacity to conclude the sale and to pass the title in the goods and services to the successful Buyer;

4.2.1.10 you will not hyperlink to or include descriptions of goods and services that you are not offering for sale on this Site;

4.3 In addition to Clause 4.2, you represent and warrant to us and separately to the successful Buyer that:

4.3.1. the goods and services you offer for sale and sell, on this Site:

4.3.1.1 are reasonably fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to matters including, without limitation, the description of those goods and their price; and

4.3.1.2. correspond with the description that you have posted on this Site; and

4.3.1.3. if sold in bulk, will correspond with any samples; and

4.3.1.4. are not defective; and

4.3.1.5. is free of any charge or encumbrance such that the Buyer will be able to enjoy quiet possession of those goods;

4.3.2. the services you offer for sale, and sell, on this Site:

4.3.2.1. will be rendered with due care and skill; and

4.3.2.2. any materials supplied in connection with any services will be reasonably fit for the purpose for which they have been supplied; and

4.3.2.3. if the Buyer has made it known to you the particular purpose for which the services are required or the result the Buyer wishes any services to achieve, then those services and any materials supplied in connection with those services will be reasonably fit for that purpose or are of such nature and quality that they might be reasonably expected to achieve that result;

4.3.3. the goods and/or services you offer for sale, and sell on this Site:

4.3.3.1. will be offered for sale, and sold, in compliance with the laws of the Republic of South Africa and especially that of the Consumer Protection Act that became effective 1 April 2011;

4.3.3.2. are legally able to be offered for sale, and sold on this Site, and otherwise, that the offer and sale of those goods and services is not in contravention of any law.

4.4. In the information provided about the goods or services the Seller offers for sale, or sells on this Site, the Seller must set out the terms and conditions for sale of those goods or services, including the following:

4.4.1. payment terms;

4.4.2. terms of delivery;

4.4.3. returns policy;

4.4.4. taxes, duties and costs (including, without limitation, VAT, or other consumption taxes, customs and other import duties and tariffs) payable by the Buyer; and

4.4.5. unless stated to the contrary, any value will be construed to refer to South African Rands;

4.4.6. and the Seller agrees that such terms and conditions will include any matters prescribed by us under this Agreement.

5. Buyer

5.1. You agree and warrant to each Seller and separately to us that:

5.1.1. your information:

5.1.1.1. is accurate and not false, misleading, deceptive or fraudulent;

5.1.1.2. does not breach any Intellectual Property Rights of a third party;

5.1.1.3. is made in compliance with all applicable laws, government regulations or guidelines;

5.1.1.4. is not forged, threatening or offensive or otherwise constitutes harassment;

5.1.1.5. does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;

5.1.1.6. does not contain any viruses, worms, Trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;

5.1.1.7. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature;

5.1.2. you have the legal capacity to purchase any goods or service and, will not otherwise be breaching any law in purchasing those goods or services;

5.1.3. you will not make an offer to purchase any goods or services on this Site unless you are able, and have sufficient, available capacity to pay for those goods or services;

5.1.4. the purchase of any goods and/or services on this Site is absolutely at your own risk;

5.2. You agree that you will utilise the Buyer Payment options made available to you by AYA, namely;

5.2.1. the use of the third- party payment provider; or

5.2.2. credit card payments

These transactions are processed by PCI compliant payment service providers.

5.2.3. an Electronic Fund Transfer (EFT) into AYA’s account

 

 

6. Transaction between Seller and Buyer

In addition to this clause and clause 4 and clause 5.

6.1. When you place an order on AYA, you are entering into a direct transaction and personal relationship with an individual Seller (facilitated by the AYA Service).

6.2. AYA encourages the two parties to independently work through the transaction to completion.

6.3. Once transaction is completed the Buyer must pay the Seller utilising a Buyer Payment option.

6.3.1. Payment may be made into AYA accounts, but AYA is simply holding the funds for the relevant seller, as is more fully explained in Clause 3.4.

6.4. All sales are binding.

6.5. The Seller is obligated to ship the order or otherwise complete the Transaction with the Buyer in a prompt manner, unless there is an exceptional circumstance, such as:

6.5.1. the Buyer fails to meet the terms of the Seller’s listing, or

6.5.2. the Seller cannot authenticate the Buyer’s identity. The Buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance.

6.6. You may rate a seller using the AYA Rating system

6.6.1. the Seller agrees that feedback, comments and ratings scores may be provided about them;

6.6.2. You are only permitted to rate a user who is a Seller if you have interacted (completed a transaction) with that Seller;

6.6.3. You are responsible for the rating being fair, reasonable and in no way malicious. Comments and ratings cannot be edited once submitted. Therefore please be cautious when adding your comment, as you are unable to edit it once you have submitted it. You could also be held liable for damage(s) to the Seller if legal proceedings are taken against you for your comment.

6.6.4. You may not abuse the rating system. Abuse of the system includes using accounts of your friends or your own secondary accounts to lower the rating of another user or raise your own rating. Threatening, abusive, racially vilifying, discriminatory or profane language is also abuse of the system and is not allowed.

6.6.5. We would like to promote and preserve free speech and therefore will remove feedback only in exceptional circumstances.

6.6.6. AYA will not be held responsible for the rating the seller is given, and for any comment remaining on the site.

6.7. In the case of all disputes between a Seller and Buyer, refer to clause 16.4.

7. The AYA Dashboard.

7.1. By using the AYA Service You may make numerous selections about Your Account and the ingestion, presentation, management, marketing, and distribution of your Content via the AYA Dashboard.

7.1.1. You may change Your selections regarding each to the extent permitted by the Dashboard.

7.1.2. In all cases, Your last submissions reflected in the AYA database shall be conclusive in the event of any dispute.

7.2. Users may edit, update or alter their personally identifiable information at any time via the AYA Dashboard and/or by following the instructions located in the AYA Privacy Policy.

PART 3: GENERAL TERMS AND CONDITIONS

8. AYA may Change These Terms and Conditions

8.1. We have an absolute discretion to change the terms of this Agreement at any time. If we do so, we will post details of any changes on this Site that will be effective forthwith.

8.2. By accepting this Agreement, you also agree to accept and be bound by any changes made by us under this Clause 8. In any event, your continued use of the Services after any changes to the terms of this Agreement have taken effect in accordance with Clause 8.1, will be deemed to be your acceptance of those changes to the terms of this Agreement.

9. Compliance with These Terms and Conditions

9.1 You agree to promptly inform us of any breach by you of the terms of this Agreement and of any conduct of another user that you think may be a breach of this Agreement, whether the conduct has ceased, is continuing, or may occur in the future.

9.2. You agree that we may and will monitor your conduct if we believe that you are not complying with the terms of this Agreement. If we do, then we will respect your confidentiality, unless:

9.2.1. doing so would or could implicate us in criminal behaviour, a civil wrong, or any other claim by a person for which we may have to pay compensation;

9.2.2. the law compels, requires, or makes it prudent and desirable for us to divulge or disclose the information we hold or know or any documents we possess; or

9.2.3. we consider it necessary or desirable to make disclosures to preserve or enforce our interests or rights.

9.3. If we believe, whether or not we have conducted any monitoring, that you are not, or may be in danger of not, complying with any of the provisions of this Agreement, then we may send you a warning asking you to rectify your conduct (although we will not be obliged to do so).

9.4. If you:

9.4.1. infringe or are suspected of infringing the Intellectual Property Rights of any other person;

9.4.2. are suspected of having, or are found by conviction, settlement insurance or escrow investigation or otherwise, to have engaged in any fraudulent or other criminal activity in connection with this Site or any other website; or

9.4.3. have an overdue payment on your AYA Account; or

9.4.4. otherwise breach this Agreement; we may, in our absolute discretion:

9.4.4.1. withhold from you, your use of any or all of the Services, and access to your information;

9.4.4.2. delete or remove, without incurring any liability to you, any or all of your information and block in-coming and out-going data or message transfers;

9.4.4.3. restore the Services if and when you can demonstrate clear and complete adherence to the terms of this Agreement on a permanent and consistent basis; and

9.4.4.4. terminate the Agreement that we have entered into with you, and cancel our obligations to provide the Services, if we are not satisfied that you will clearly and completely adhere to the terms of this Agreement, on a permanent and consistent basis, if the Services are restored to you.

10. Use of Site

10.1. In using this Site, you must not:

10.1.1. illegally copy, store, use, alter, modify, impair, interfere with or attempt to interfere with, or distribute software or other data;

10.1.2. alter, damage, destroy, erase, interfere with or attempt to interfere with, or infect our files, data and other computer systems and network resources or those of other users or any other person, or access, copy, modify, remove or impair the reliability, security or operation of, any data or files or other information stored in these systems or network resources;

10.1.3. impair the electronic communications to or from, or interfere with or obstruct the lawful use of, or otherwise cause any unauthorised computer functions to our computer systems or those of other users or any other person;

10.1.4. offer, sell, export any goods and services if this breaches any law applicable to you; and

10.1.5. engage in any practice or conduct that is unlawful under any laws applicable to you;

10.1.6. copy, modify, or distribute rights or content from our sites, services or tools or AYA Africa’s copyrights and trademarks;

10.1.7. harvest or otherwise collect information about users (including email addresses), trades listed or sales activities conducted on AYA without the express permission of AYA

10.2. Any links or references (direct or indirect) to other web sites on this Site are provided for your convenience only and do not, and are not an express or implied endorsement by us, of those web sites, or the products and services contained on those web sites.

10.3. The information and material contained on this Site has been prepared in accordance with the laws of the Republic of South Africa for use in the Republic of South Africa only. It may not comply with the laws of any other country. We make no representation that the information and material contained on this Site complies with the laws (including any intellectual property laws) of any country other than the Republic of South Africa. If you choose to access this Site from outside the Republic of South Africa, you do so at your own risk and will be responsible for ensuring compliance with the laws of the country in which you are located.

10.4. Using information about other AYA users –

10.4.1. You agree to use user information only in accordance with applicable laws and regulations (including, without limitation, data protection laws) and only for:

10.4.1.1. AYA-transaction-related purposes that are not unsolicited commercial communications;

10.4.1.2. using services offered through AYA; and

10.4.1.3. other purposes a user expressly agrees to.

10.4.2. You agree to respect other users’ privacy and disclose your privacy and security policies to them. By law, you must give other users a chance to remove themselves from your database and a chance to review the information you have collected about them.

11. Entering into this Agreement

11.1. You represent and warrant to us:

11.1.1. if you are an individual that you are eighteen (18) years of age or over and of full legal capacity and thus capable of entering into this Agreement and performing your obligations under this Agreement; or

11.1.2. if you are a juristic entity:

11.1.2.1. that you are duly incorporated and have been issued with a certificate of commencement of business and have the power to own/sell property; and

11.1.2.2. entering into this Agreement does not violate your Constitution; and

11.1.2.3. you have the power and have taken all corporate and other action required to enter into this Agreement and to authorise entering into this Agreement and performing your obligations under this Agreement.

11.2. Transactions in case of a minor

11.2.1. If you are under 18 years of age or if you are not legally permitted to enter into a binding and enforceable agreement, then you may not register as a user or make use of the services of AYA Africa, unless you are duly supervised by and you have obtained the consent of your parent or legal guardian or spouse.

11.2.2. If your parent or legal guardian supervises you and gives his/her consent, then such person hereby agrees to be bound and to be liable and responsible for you and for all your obligations or duties in terms of the agreement entered into between yourself and AYA Africa.

11.2.3. We strictly reserve our rights to refuse our service, terminate/suspend your account or cancel orders, should AYA Africa, in our sole discretion find that you have failed for whatsoever reason to comply with the aforementioned provisions or the remaining provisions of these terms and conditions, without prejudice to any other rights that we may have at law.

11.2.4. To the extent that you utilize our services, we shall deem it that you were / are supervised by and that you have obtained the consent of your parent or legal guardian or curator or trustee. The onus to prove that you were not supervised or did obtain the requisite consent shall rest with you.

12. Licence of, and Use of, your Information

12.1. You hereby grant to us a non-exclusive, irrevocable, worldwide, perpetual, royalty- free right to exercise the Intellectual Property Rights you have in your information, in whatever medium.

12.2. You further hereby grant AYA the right to use Your trademark, logo and Content (“Your Branding”) in any particular marketing and/or promotional campaign initiated by AYA in all forms of media both physical and digital.

12.2.1. You agree to:

12.2.1.1. permit AYA to utilize Your Branding in marketing materials and on its website; and

12.2.1.2. permit AYA to identify You as a customer.

12.3. You are not authorized to use the AYA trademark or logo (the “AYA Branding”) in any manner without the express written consent from AYA.

12.3.1. Notwithstanding the foregoing, You are authorized to use the AYA Marketing Materials

12.4. Subject to Clause 12.1. to Clause 12.3., we agree to use your information only in accordance with the Privacy Statement below and further hereby acknowledge and agree as follows:

12.4.1. You shall retain all right, title and interest, including all intellectual property rights, in and to any of your content and your branding you provide to AYA and any other property, and/or material belonging to you, and nothing in this agreement shall confer any license or right of ownership in such material; and

12.4.2. AYA shall retain all right, title, and interest, including all intellectual property rights, in and to any of the AYA Service, AYA  branding, website, and technology provided by AYA, and any other property, and/ or material belonging to AYA, and nothing in this agreement shall confer any license or right of ownership in such material.

13. Privacy Statement to be read in conjunction with Privacy Policy

This privacy statement discloses the privacy practices for the aya.africa site.

13.1. We have agreed to notify you:

13.1.1. What personally identifiable information of yours or third party personal identification is collected from you via this site;

13.1.2. The organization collecting the information;

13.1.3. How the information is used;

13.1.4. With whom the information may be shared;

13.1.5. What choices are available to you regarding collection, use and distribution of the information;

13.1.6. The kind of security procedures that are in place to protect the loss, misuse or alteration of Information under our control;

13.1.7. How you can correct any inaccuracies in the information.

14. Disclaimer and Limitation of Liability

14.1. Notwithstanding, and in addition to any other provision in this Agreement, you agree that we will not be liable to you or any other person for any loss, damage, expense, or other amounts incurred, savings foregone, or hardship suffered, by any person however arising (including where the cause cannot be determined), or whether it arose directly or indirectly from any authorised or unauthorised use of, access to, reliance on, or any inability to use or access this Site, the Services, or as a consequence of such use, access, reliance, or inability to access, including, but not limited to any loss relating to one or more, or a combination, of the following:

14.1.1. a failure, or error in the operation, of all or any part of this Site, our computer systems, network resources, the Services, or any other computer systems or network resources to which they may be connected or upon which they may rely, or the taking offline of any of those computer systems or network resources for any reason;

14.1.2. any circumstances which produce or have the consequence of producing a degradation, fall-off, or complete severance of access to this Site or network resources or any other computer systems or network resources to which they may be connected by any person;

14.1.3. in relation to purchases or sales on this Site, that were not processed or accepted due to technical difficulties or for any reason whatsoever;

14.1.4. whether we or another person could have foreseen such a loss or type of loss, or were negligent or reckless, whether or not the loss was suffered in connection with a business or commercial enterprise, including, but not limited to, any economic or consequential loss or damage, any and all damage to, or loss of, any equipment, property, data, or other information possessed by you or any other person, any loss of profits, and any losses relating to contracts, business, revenue, goodwill, or any anticipated savings;

14.1.5. any personal losses or hardship, stress and anxiety, nervous shock, or other personal suffering or condition;

14.1.6. any errors or omissions in any documentation or other literature provided by us, any errors or omissions in any data, on this Site, or any breach of contract or negligence on the part of us, our employees, agents or authorised representatives;

14.1.7. any reliance on, the information and material contained on this Site about any goods and services or any other information or material whatsoever, or any information and material contained on, and the privacy of, web sites linked to this Site;

14.1.8. any conduct, act or omission, whether negligent, reckless, or otherwise, whether within any actual, ostensible, or apparent authority or not, at all on the part of our employees, agents, or authorised representatives.

14.1.9. for anything relating to the AYA Rating system

14.1.10. any decision to hold an inquiry or not hold an inquiry into an alleged breach on the part of one of the users.

14.2. To the extent permitted by law, all terms, conditions and warranties or representations, or representation whether express, implied, statutory, common law or otherwise relating to the Services or anything in these terms and conditions, are excluded unless expressly included in this Agreement.

15. Release and Indemnity

15.1. Notwithstanding, and in addition to any other provision in this Agreement, you agree to release from, and indemnify, each Indemnified Party, against, any claims, losses, liabilities, suits, demands, proceedings, costs or expenses (including legal costs on a full indemnity basis) directly or indirectly related to, or, arising out of:

15.1.1. your use of the Services;

15.1.2. your offering for sale and the sale of, and/or, your purchase of, any goods and services as a result of using the Services;

15.1.3. the reproduction, broadcast, transmission communication or making available of any information or material (including credit card details) by us or any users (other than you) made available by use of the Services;

15.1.4. any one or more of the circumstances described in Clause 14.1.

15.1.5. any alleged breach of a person’s rights (including, but not limited to, defamation or misleading or deceptive conduct) by a communication, broadcast or transmission made available by means of the Services; or

15.1.6. any claim by any person arising out of, or in connection with any cessation (temporary or permanent) of the supply of the Services in accordance with this Agreement.

16. Disputes

16.1. You and AYA must follow the procedure for resolving any dispute in connection with or arising out of this Agreement, in accordance with this Clause 16 before starting any proceedings (except proceedings seeking urgent relief).

16.2. The procedure for resolving a dispute is as follows:

16.2.1. first, either you or AYA may give notice to the other about the nature of the dispute (” Notice “) and you and AYA will seek to negotiate a settlement within 14 working days of receipt of the Notice;

16.2.2. second, to the extent those negotiations fail, you and AYA will seek, within a further 5 days, to reach agreement on the appointment of a mediator for resolving the dispute, and

16.2.3. failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator(s) appointed by the Foundation.

16.3. You shall be liable for all costs incurred by us in the enforcement of any rights which we have in terms of this Agreement or in the recovery of any monies due to us, including collection charges and costs on an attorney and own client scale and costs of counsel as on brief whether incurred prior to or during the institution of legal proceedings or if judgement has been granted in connection with the satisfaction or enforcement of such judgement against you.

16.4. User disputes:

16.4.1. AYA encourages users to report user-to-user disputes to local law enforcement, or a certified mediation or arbitration entity, as applicable.

16.4.2. AYA, for the benefit of users, may try to help users resolve disputes.

16.4.3. AYA does so in AYA’s sole discretion, and AYA has no obligation to resolve disputes between users or between users and outside parties.

16.4.4. To the extent that AYA attempts to resolve a dispute, AYA will do so in good faith based solely on AYA’s policies.

16.4.5. AYA will not make judgments regarding legal issues or claims.

17. Entire Agreement

17.1. this Agreement together with the membership agreement and Privacy Policy constitutes the entire Agreement between you and AYA.

17.2. Unless the context indicates otherwise, this Agreement incorporates all other Agreements between the parties. Should there be any conflict between any other agreement and this Agreement, the provisions of this Agreement shall prevail.

18. Remedies Cumulative

All rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law. A notice dealing with amendments or variations or updates of this Agreement will be posted on our website .It is your duty and responsibility to familiarize and understand the amendments or variations or updates. By continuing to use our services, you are deemed to have accepted the amendment, variation or update as binding on you.

19. Relationship Of Parties

Nothing in this Agreement shall be deemed to constitute any party as the agent, partner or joint venture of another party.

20. Further Assurances

A party shall take all such steps, execute all such documents and do all such acts and things as may be reasonably required by another party to give effect to any of the transactions contemplated by this Agreement.

21. Non-Waiver

Other than as otherwise specified in this Agreement, neither the failure of a party to enforce at any time any of the provisions of this Agreement nor the granting of any time or other indulgence shall be construed as a waiver of that provision or of the right of that party thereafter to enforce that or any other provision.

22. Governing Law

22.1. This Agreement will be governed by the laws in force in the Republic of South Africa and each party unconditionally submits to the jurisdiction of the court of the Republic of South Africa in relation to any legal action, suit or proceedings arising out of or with respect to this Agreement.

22.2. With reference to clause 28.1, the parties submit to the jurisdiction of the High Court of South Africa, Cape High Court and the parties submit to the jurisdiction of the Magistrate’s Court or the Regional Court irrespective of whether the amount claimed by us exceeds the applicable monetary limit allowed to institute a claim in the Magistrate’s Court or Regional Court.

23 Notices

You choose your domicilium citandi et executandi (“domicilium”) for the purposes of giving any notice serving any legal process and for any other purpose arising from this Agreement at your addresses, e-mail and telefax numbers as set out in your application for registration on this site. Any notice to be served by either party to the other must be in writing and will be sent by hand delivery, post or facsimile, or email to the relevant party to this agreement at its respective address as specified on the application for registration on this Site and, in the case of AYA, at the aforementioned address and in the case of mail will be deemed to have been served three (3) business days after posting. In the case of a facsimile it will be deemed to have been served on receipt of a successful transmission notice and in the case of email it will be deemed to have been served if no return email stating that the email cannot be delivered is received. If a notice is served by hand and proof thereof is made available, the notice will then be deemed to be delivered on the actual date and time of delivery.